“Play in the Joints Between the Religion Clauses” and Other Supreme Court Catachreses

 In Homepage, Ideas

Even when the U.S. Supreme Court reaches the right result in a matter involving church-state relations, the Justices too often do so for the wrong reasons. Cutter v. Wilkinson is illustrative. Decided during the Court’s last term, Cutter reversed a lower court that had struck down as unconstitutional the Religious Land Use and Institutionalized Persons Act. Known by the clunky acronym RLUIPA, this relatively new congressional statute tempers the impact of zoning decisions on religious organizations, as well as assists those individuals of faith who are incarcerated in our country’s jails and penitentiaries. In these two quite distinct arenas where regulation is pervasive, RLUIPA requires that laws having a disparate impact on a religious organization or a particular religious observance must yield to the needs of the religious liberty claimant. This means that the religious claimant is exempt from the strictures of a law generally binding on others. The exemption holds unless officials can show that the claimant should not be excused—even in just this one circumstance—because of likely serious public harm such as a traffic hazard or a prison security breach.

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